Digital cloning – a sci-fi dream or a legal nightmare?

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Science and technology develop so fast that it has become hard to keep track of all the changes. From artificial intelligence to advancements in space technology, scientists develop new solutions every day. As Debra Mathews, a bioethicist from Johns Hopkins University points out, “science by its nature moves very quickly and unpredictably and generally out of the public spotlight. So, it’s generally not until after the science being produced and published the policymakers or the general public hear about it.”

In order to address potential changes, it is important to pay attention to the new technologies at the early stage of their development. When technologies, imaginable only in fiction, become part of the reality, it is important to asses possible legal and ethical implications for society. This is particularly apparent when it comes to digital clones. The name, which might sound familiar from Black Mirror, and other sci-fi shows, has become one of the most topical subjects in neuroscience and cloning.

The Immortality of human consciousnessSetting fictional dreams aside, the discussion around human and digital cloning should start with the basic question of what digital clones are. Such clones are something one would imagine as software versions of peoples’ minds, software-based alter egos or mental twins.

“Mindclones [digital clones] are mindfiles used and updated by mindware that has been set to be a functionally equivalent replica of one’s mind,” says Martine Rothblatt, a civil lawyer and entrepreneur in her book, Virtually Human. “A mindclone is created from the thoughts, recollections, feelings, beliefs, attitudes, preferences, and values you have put into it. Mindclones will experience reality from the standpoint of whatever machine their mindware is run on.”

From a psychological perspective, digital clones, with the ability to transfer a person’s consciousness after their death, brings society one step closer to immortality. The question of immortality has bothered humanity for thousands of years. Until recently, it has been subject to both religious and fictional debate as opposed to being a scientific reality.

Discussing this issue, one of the prominent modern philosophers, Stephen Cave in his published works on immortality wrote that “the dream of some kind of life without end is a universal feature of human experience, common to all cultures across time and place—and still today driving us on toward new achievements that surpass even the pyramids.”

Such a claim has a lot to do with human existence and the so-called "death anxiety". As human beings are the only animals who know they will die, the anxiety about irreversible death is always there. In this regard, two American psychologists, Eric Olson and Robert Lifton, try to explain the notion of death anxiety in their ground-breaking work Living and Dying. “Because human images of continuity can assume a limitless number of forms, the modes of immortality can be varied in an unending series as diverse as the dreams and lives of individual people. Human inventiveness in the pursuit of immortality testifies to the persistent urgency of avoiding death anxiety.”

Our future digital twins The latest research in the field of neuroscience has progressed a few steps towards bringing immortality as close to the real life as possible. “This blessing of emotional and intellectual continuity or immortality is being made possible through the development of digital clones or mindclones” says Rothblatt.

It may seem unrealistic at first, however, apart from theoretical discussions and hypothetical assumptions, there have been several projects and initiatives developing digital clones. One of the major projects is 2045 Initiative, led by the Russian billionaire Dmitry Istskov.

The 2045 Initiative is primarily focused on developing digital technologies enabling the transfer of an individual’s personality to a more advanced non-biological carrier. In doing so, the individual's life is extended to the point of immortality. As the entrepreneur himself believes, “within the next 30 years, I am going to make sure that we can all live forever. I'm 100% confident it will happen. Otherwise I wouldn't have started it.”

It is hard to not get excited after reading such statements. If created, it is clear that digital clones would bear transformative effects on society. The Dalai Lama, among others, has supported such initiatives but has also acknowledged possible milestones. “We should carry out these experiments with a full sense of responsibility and respect for life that will only benefit humanity, benefit others,” he said in a conversation with Istskov.

Since digital clones will be created to replicate the consciousness, it is arguably hard to prove that it will not extend the consciousness to unknown and utopian fields. Such fears are not new in the scientific community.

Jenny Huberman, assistant professor at University of Missouri, has pointed out that, “it all essentially comes to transhumanists believe that technology will imbue us with intellectual, physical and psychological capabilities that far surpass what present-day human beings are familiar with and that this will ultimately transform the human species and human societies in very significant ways.”

Parallels with stem cells research As Professor Johan Storm of the University of Oslo told Vice, “a lot of things are, in principle, possible in the long run. We have already cloned animals. The question of cloning humans is not a technical one, but an ethical one.” In the past decade, discoveries in the field of stem cells have drawn the attention of the legal community, as well as the general public.

The main issues have been around using embryonic stem cells for research purposes. It has been discovered that stem cells during the first week of an embryo are very plastic, which means that they can develop into any cell in the body. Scientists have shown that embryonic stem cells can potentially cure previously incurable diseases, including diabetes and Alzheimer's disease.

As Doug Melton, Professor at Harvard University, says, “it’s not the technological solution. It’s not the Google solution. It’s nature’s solution to the problem. You’re providing the cell which is missing.” However, in order to harvest the cells, the embryo will have to be destroyed. This, in turn, has created strong objectors who question whether it is morally acceptable to destroy an embryo that has a potential to become a human being.

In order to adequately protect human life and human rights, the United Nations General Assembly adopted the United Nations Declaration on Human Cloning. In its text, the Member States called for the prohibition of the application of techniques that may be contrary to human dignity. Most of the states under the UN umbrella have addressed the issues surrounding embryonic stem cell research, either by their ratification of the Declaration or through their own domestic laws or policy statements.

What is the relevance of embryonic stem cells to digital clones? The parallel is quite simple, for a technology to succeed and become profitable it must be patentable. In the EU, where patent law is unified by the European Patent Convention, article 53(a) precludes patentability if the commercial exploitation of an invention breaches order, public or morality. Furthermore, the Court of Justice of the European Union has emphasised the importance of “the fundamental right to human dignity and integrity” in the field of patent protection of biotechnological inventions. As digital cloning directly affects human beings, the questions of morality and human dignity will be inevitable.

Contrary to actual clones or the harvesting of embryonic cells, digital clones are not supposed to contain any DNA, nor do they require using embryos. However, the health impacts of digital clones are, as of yet, unknown. It is quite possible that such clones might have an impact on psychological health and mental stability. If that turns out to be the case, then it will not be an easy task to argue that commercial exploitation of the technology does not disturb morality.

Troubling technologyAside from the potential difficulties in the field of patent law, it should be remembered that many aspects of everyday life would have to adapt to digital clones. “Considering the tremendous changes our societies have already successfully managed in the last hundred years," Rothblatt says, "I have great confidence that we have the ingenuity and decency to develop legal solutions to the needs of humans, mindclones, and bemans [digital clones] for dignified familial relationships.”

Even though such an optimistic claim might sound appealing, it is also farfetched. Copyright law, for instance, has still not managed to adapt to the realities of the digital world, having norms that were drafted a century ago. To this effect, it is quite naïve to think that, just because humans have adapted to changes throughout the history, implementing digital clones into everyday life will be achievable. No matter how many examples from history scholars may use, it will not change the fact that implementing digital clones into the world is different from anything that has happened in history thus far.

It is easy to find potential loopholes with the naked eye. It is also not clear which status clones will have. Starting with the definition of “everyone,” mentioned in the main human rights treaties. Will cyber-conscious beings be treated as humans, or will all the norms have to be changed accordingly? In the case of the former, it will meet strong opposition.

As Tim Wu, a law professor at Columbia, said, “to give computers the rights intended for humans is to elevate our machines above ourselves.” While, if digital clones will be given a separate legal status, most of the law will have to adapt to it, including judicial and executive branches. It is now harder than ever to achieve compromise on global legal standards, and having different laws in different jurisdictions will create a legal nightmare.

The question of privacy has been troubling the best minds for the past years. The supporters of digital clones will have to ensure that someone is not able to peer into the clone’s private thoughts and fantasies in order to expose them. When even the strongest governments cannot provide reasonable protection of their national confidential data, how can one talk about security within cyber-conscious beings?

Lastly, from ethical and religious standpoints, the question of immortality will most likely face opposition. It is somewhat difficult to assume that a digital clone taking on the consciousness of a religious man will continue to comply with concepts from the dead man's religion. If a human’s mind will never die then it will presumably never go to the afterlife. That alone contradicts one of the main concepts of several religions.

Towards the futureSetting aside the legal and ethical perplexities, as well as possible negative political implications, the community should ask one simple question. Do people actually need digital clones? The Earth is already overpopulated and polluted, while poverty is a problem in many countries. Digital clones do not seem to carry solutions to any of these pressing issues, and on the contrary, might even contribute to the issues that already exist today.